April 29, 2008
ROBERT E. ANDREWS, PLAINTIFF-APPELLANT,
JOANNE RAJOPPI, UNION COUNTY CLERK; PAULA SOLLAMI-COVELLO, MERCER COUNTY CLERK; KATHLEEN A. DONOVAN, BERGEN COUNTY CLERK; ELAINE FLYNN, MIDDLESEX COUNTY CLERK; JOAN BRAMHALL, MORRIS COUNTY CLERK; M. CLAIRE FRENCH, MONMOUTH COUNTY CLERK; CHRISTOPHER J. DURKIN, ESSEX COUNTY CLERK; BARBARA A. NETCHERT, HUDSON COUNTY CLERK; CARL W. BLOCK, OCEAN COUNTY CLERK; KAREN BROWN, PASSAIC COUNTY CLERK; BRETT RADI, SOMERSET COUNTY CLERK; EDWARD MCGETTIGAN, ATLANTIC COUNTY CLERK; WADE HALE, ACTING BURLINGTON COUNTY CLERK; JAMES BEACH, CAMDEN COUNTY CLERK; RITA MARIE FULGINITI, CAPE MAY COUNTY CLERK; JAMES HOGAN, GLOUCESTER COUNTY CLERK; MARY MELFI, HUNTERDON COUNTY CLERK; GILDA GILL, SALEM COUNTY CLERK; ERMA GORMLEY, SUSSEX COUNTY CLERK; AND PATRICIA KOLB, WARREN COUNTY CLERK, DEFENDANTS-RESPONDENTS, SENATOR FRANK R. LAUTENBERG AND LAUTENBERG FOR SENATE; BERGEN COUNTY DEMOCRATIC ORGANIZATION AND NEW JERSEY DEMOCRATIC STATE COMMITTEE, DEFENDANTS-INTERVENORS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-59-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 28, 2008
Before Judges Stern, A.A. Rodríguez and C.S. Fisher.
Plaintiff Robert Andrews, one of three candidates for the Democratic nomination for United States Senator in the June 3, 2008 primary, filed this action seeking relief regarding the design of the ballots to be used for the primary. The dispute at hand arose because the county clerks permitted candidates for other offices to be bracketed with senate candidates and because the county clerks differed in the manner in which they treated senate candidates who requested bracketing and those that did not.
Andrews's action was brought, on April 16, 2008, against the county clerks of all twenty-one counties. The trial judge initially denied an application to stay the process and also permitted the New Jersey Democratic State Committee, the Bergen County Democratic Organization, and Frank R. Lautenberg, the incumbent candidate for the United States Senate, to intervene as defendants. After providing all parties the opportunity to be heard, the trial judge entered a final order based on the reasons set forth in her thorough oral decision of April 22, 2008. The judge denied the application "to enjoin the production and printing of the ballots," but also provided "that the Bergen County clerk shall not add any candidates not affiliated with a candidate for U.S. Senator to the column under that Senate candidate's name."
Plaintiff immediately sought our review of the trial judge's April 22, 2008 order. At that time, we concluded that the matter warranted expedited consideration and accelerated the filing of briefs on the merits. We now affirm in part and reverse in part.
In seeking our intervention into the electoral process, Andrews first argues there has been a violation of N.J.S.A. 19:23-26.1, which states:
In the case of a primary election for the nomination of a candidate for the office of United States Senator . . . the names of all candidates for the office of United States Senator . . . shall be printed on the official primary ballot in the first column or horizontal row designed for the party of those candidates.
This portion of the statute requires, as relevant here, that senate candidates be listed either in the left vertical column or the top horizontal row (depending upon the type of ballot used). Here, most of the clerks listed all three senate candidates -- Lautenberg, Andrews, and Donald Cresitello --either side-by-side in the top row or one on top of the other in the left column. It appears, however, that three counties --Camden, Cape May and Somerset -- have placed the three Democratic senate candidates in what the parties have referred to as an "L" formation. By way of illustration, the three senate candidates appear in the following fashion in the upper left corner of the proposed ballot in Somerset County:
Andrews Lautenberg Cresitello
We agree with Andrews' contentions -- and Lautenberg and the New Jersey State Democratic State Committee acknowledged at the argument before us -- that this approach is inconsistent with the requirements of the first paragraph of N.J.S.A. 19:23-26.1. Stated differently, the intent and spirit of the statute require the senate candidates to be listed in the same first column or same first row, but not in the manner adopted by counties such as Somerset.
Andrews also contends that those counties that permitted candidates for other offices to be bracketed with a senate candidate violated the third paragraph*fn1 of N.J.S.A. 19:23-26.1, which states:
No candidate for nomination for any other office shall have his name printed in the same column or horizontal row as the candidates for nomination for the office of United States Senator . . . .
We previously held this portion of the statute to be unconstitutional. Schundler v. Donovan, 377 N.J. Super. 339, 348 (App. Div. 2005). See also Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed. 2d 271 (1989); Lautenberg v. Kelly, 280 N.J. Super. 76 (Law Div. 1994).*fn2 The Supreme Court affirmed our decision in Schundler substantially for the reasons set forth in Judge Kestin's opinion, 183 N.J. 383, 385 (2005), and, in so holding, foreclosed Andrews's argument that the third paragraph should be enforced, is not unconstitutional, or can be saved in a manner other than by bracketing. Because the trial judge correctly reached this proper conclusion, we affirm the order under review insofar as it denied relief regarding the bracketing of senate candidates with candidates for other offices as those candidates had requested.
Andrews's third and last argument is that we should intervene into the designing of the ballots in counties where senate candidates were treated differently depending upon whether there was a valid request to be bracketed with candidates for other offices. The record reveals that the county clerks adopted various methodologies for determining the locations of all candidates on the ballot for the upcoming primary. It appears that essentially three different approaches were taken by nineteen county clerks. The other two counties --Warren and Sussex -- use equipment that does not permit bracketing; their ballots are not in question here.
The clerks of seven counties -- Union, Monmouth, Hudson, Mercer, Middlesex, Atlantic and Cumberland -- concluded that senate candidates who requested bracketing with candidates for other offices were entitled to a preference; as a result, those clerks provided the bracketed senate candidate with the allegedly preferential spot,*fn3 and then drew the names of the other senate candidates for the remaining locations.*fn4 The clerks of four other counties -- Somerset, Camden, Cape May, and Burlington*fn5 -- took the view that only non-bracketed candidates were entitled to the preferential spot. And the clerks of the eight remaining counties -- Essex, Gloucester, Bergen, Morris, Ocean, Passaic, Hunterdon and Salem -- concluded that bracketing was irrelevant in this respect and included all bracketed and non-bracketed candidates in the drawing for the preferred location on the ballot.*fn6
The trial judge concluded that even though candidates received disparate treatment in some counties, our decision in Schundler required only that candidates be treated fairly and "fair treatment doesn't always mean being treated exactly the same" across the State. We reject this interpretation.
As we held in Schunder, the linchpin of the legislative scheme, to "the extent physical constraints allow," is "equality of treatment among candidates for the same office." 377 N.J. Super. at 348. Even in the far more convoluted circumstances presented in Schundler, we "mandate[d] an approach which require[d] all the candidates to begin from the same position, subject to the customary drawing as to relative placement, without so extraneous a consideration as bracketing or non-bracketing as the beginning point, notwithstanding that the right to bracketing is, as a general matter, fundamental as an expressive exercise." Id. at 349.
It bears noting that in Schundler we considered a ballot that included seven Republican candidates for governor -- "a special situation" with a tendency to impose "limitations . . . by reason of the physical dimensions of the ballot." Id. at 347. Here, we consider a ballot that includes only three senate candidates; in other words, we now deal with what we referred to in Schundler as "a more typical election," where "the idea of bracketing imposes no disadvantage on any except for the consequences of 'the luck of the draw.'" Id. at 349. In these more typical elections, "[t]here is, normally, enough space on the ballot to give each candidate the same relative positioning once the order of listing is determined by lot." Ibid. Here, no county clerk has persuasively demonstrated that this election presents any of the difficulties presented in Schundler.
In deferring to the expertise of the county clerks, the trial judge described what she concluded was a rational basis for disparate treatment among bracketed and non-bracketed senate candidates. The judge held that it was appropriate for clerks "to allow the names where there are multiple people on the same slate to be close in one instance to the office which is on the left hand side of the ballot[,] . . . [s]o they gave the first position to the candidates with a slate to assist the voter." In rejecting this, we first recognize a fundamental flaw in the judge's approach. The finding that it was reasonable for clerks to prefer bracketed candidates because it would allow for more candidates to appear in closer proximity to the title of the office they seek, cannot support a finding that other clerks, who gave non-bracketed candidates a preference to the top row or far left column, also acted reasonably. That is, what is claimed to be a good reason for one preferential approach cannot possibly be a good reason for adopting elsewhere the exact opposite approach.
It is true, as the judge correctly observed, that our courts normally defer to the expertise of the county clerks regarding ballot design. See Quaremba v. Allan, 67 N.J. 1, 15-17 (1975). This does not, however, preclude our intervention when county clerks fail to apply that expertise in a manner that accords with the standards established by the Legislature. Schundler, supra, 377 N.J. Super. at 346. Here, the preferential treatment permitted non-bracketed senate candidates in some counties, and bracketed senate candidates in other counties, was inconsistent with the legislative scheme's hallmark of "equality of treatment." Id. at 349. Those departures from the process required by the legislative scheme cannot go unredressed merely because of our natural tendency to defer to the discretion of the county clerks in such matters.
Assuming, as we have for present purposes, that a candidate obtains an advantage when obtaining the top row or the far left column, the equality among candidates that is required by the legislative scheme -- absent the potential for voter confusion in unusual circumstances -- precludes preferential treatment for candidates based on bracketing or non-bracketing. Schundler, supra, 377 N.J. Super. at 349. Because we view the primary in question as a "typical election" requiring the equal treatment of all senate candidates regardless of bracketing, we are obligated to intervene to ensure the fairness of the Democratic primary and to compel all the county clerks to treat all bracketed and non-bracketed senate candidates in the same fashion. In those counties where the clerk preferred either bracketed or non-bracketed senate candidates, we direct that new drawings be held with all three senate candidates being included in the drawing. New drawings in those counties should be conducted no later than noontime, May 1, 2008; the ballots in those counties should be redesigned immediately thereafter and forwarded to the printers without undue delay.*fn7
For these reasons we reverse in part and enter judgment directing the county clerks of counties where bracketed candidates were given preferential treatment, and the county clerks of counties where non-bracketed candidates were given preferential treatment, to conduct new drawings and redraft ballots in conformity with the results thereby obtained and in conformity with our opinion, which includes a prohibition on the "L" formation utilized in Somerset, Cape May and Camden Counties. We affirm the dismissal of the complaint in all other respects. And we remand to the trial judge for any further proceedings that may be required to enforce our judgment.*fn8